LACHIT BORDOLOI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS is an application for a writ of Habeas Corpus questioning the validity of the order of detention and the continued detention of the petitioner Under Section 3(2) of the National Security Act, 1980. While the petitioner was confined in jail, in connection with some criminal cases, he was served with an order of detention dated 2 -7 -83 passed by Shri S. Chatterjee, District Magistrate, Nowgong, being satisfied that the detention of the petitioner was necessary for interdicting him 'from acting in any manner prejudicial to maintenance of public order' and directed that the petitioner should be detained' with immediate effect until, further orders'.

(2.) ON 8 -7 -83 the detenu was served with the grounds of detention rendered by the detaining authority on 4 -7 -83. The petitioner submitted his representation to the Central Government on 22 -9 -83 through the Superintendent of Special Jail, Nowgong praying for revocation of his order of detention Under Section 14 of 'the Act'. The petitioner contends that he was not informed by the defining authority or any other authority that he had a constitutional as well as legal right to make such representation to the Central Government and hence there was delay on his part. In this writ petition filed on 26 -9 -83, the petitioner took up positive grounds that the Central Government left over his representation, dis not consider it and failed to apply its mind to the representation which is violative of Section 8 of the Act read with Article 22 of the Constitution. The Central Government was made a party and Mr. S. Ali, Senior Standing Counsel, Central Government received notice of the Rule on 26 -9 -83, Since 5 -10 -83 the matter was in the hearing list. An affidavit was filed on behalf of the Central Government on 8 -11 -83 annexing therewith a copy of the teleprinter message received by learned Standing Counsel, Central Government.

(3.) MR . A.K. Bhattacharyya, learned Counsel appearing for the detenu has made various submissions. However, we propose to consider only the following two contentions : (1) That the detenu had a constitutional as well as statutory right to move the Central Government for revocation of the order of his detention and for that purpose he submitted a representation addressed to the Central Government on 22 -9 -83 but the Central Government has callously kept the same and has not dealt with it so far. The delay in action, which now exceeds over three months vitiates the detention and learned Counsel places reliance on Sabir Ahmed v. Union of India (UOI) : [1980]3SCR738 , Sat Pal v. State of Punjab : 1981CriLJ1867 , Vijay Kumar v. State of J and K : : [1982]3SCR522 , Rattan Singh v. State of Punjab AIR 1982 SC 1 : 1982 Cri LJ 146 and Tara Chand v. State of Rajasthan : 1980CriLJ1015 . (2) That on 2 -7 -83 when the order of detention was rendered by Shri S. Chatterjee, District Magistrate, Nowgong, the petitioner was in jail and the order of detention does not show that the detaining authority had in mind the fact that the petitioner was in detention and/or had in view that the detenu who was already in jail his further detention was necessary. There is no revelation in the order of detention that the subject was already in jail yet a preventive detention order was necessary. There is no affidavit filed by the detaining authority as to the awareness of the relevant facts and as such the detention order was a mechanical exercise of the power. It has been further contended that absence of the awareness clearly establishes the fact of non -application of mind by the detaining authority to the most relevant facts and the order of detention is liable to be set aside.